Citation Nr: 9811804
Decision Date: 04/15/98 Archive Date: 05/06/98
DOCKET NO. 96-08 787A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for a skin condition as
secondary to exposure to herbicide agents.
2. Entitlement to service connection for a nervous condition
as secondary to exposure to herbicide agents.
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military Affairs Bureau for Veterans
Affairs and Assistance
ATTORNEY FOR THE BOARD
M. A. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1966 to
November 1968. This appeal arises from an August 1995 rating
decision of the Pittsburgh, Pennsylvania, regional office
(RO) which denied service connection for a skin condition and
nervousness as secondary to exposure to Agent Orange. The
notice of disagreement was received in July 1996. The
statement of the case was issued in March 1996. The
veteran’s substantive appeal was received in March 1996.
The Board of Veterans’ Appeals (Board) notes that the veteran
raised the issue of service connection for post traumatic
stress disorder (PTSD) in a February 1996 statement, but that
he withdrew said claim via a September 1996 telephone
conversation. Written confirmation of the veteran’s intent
to withdraw his claim for service connection for PTSD has not
been received. The Board also observes that the veteran
appears to have raised a claim for service connection for the
birth defects of his children as secondary to exposure to
herbicide agents. This issue has not been adjudicated by the
RO. The issues of veteran’s entitlement to service
connection for PTSD and service connection for the birth
defects of his children are not inextricably intertwined with
the current appeal, and they are referred to the RO for the
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the appellant contends that he suffers from
various skin problems and extreme nervousness, and that those
conditions were caused by his exposure to herbicide agents
during his military service in Vietnam.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has failed to
satisfy his initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
his claims for service connection for a skin condition and a
nervous condition as secondary to exposure to herbicide
agents are well grounded.
FINDINGS OF FACT
1. The veteran had active military service in Vietnam during
the Vietnam era.
2. While medical evidence confirming a diagnosis of a
nervous condition has not been presented, there is evidence
that shows that the veteran has been diagnosed as having a
seborrheic keratosis of the left ear.
3. There is no medical evidence that establishes that the
veteran was diagnosed as having porphyria cutanea tarda
within one (1) year from the last date on which he was
exposed to a herbicide agent in service, or that he has a
current definitive diagnosis of that condition.
4. The veteran has not been diagnosed with any disorder
recognized by VA as etiologically related to exposure to
herbicide agents used in Vietnam.
5. There is no competent medical evidence linking the
veteran’s current seborrheic keratosis of the left ear with
exposure to herbicide agents used in Vietnam.
6. The veteran’s claims for service connection for a skin
condition and a nervous condition as secondary to exposure to
herbicide agents are not plausible.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection of a skin
condition as secondary to exposure to herbicide agents is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The claim of entitlement to service connection of a
nervous condition as secondary to exposure to herbicide
agents is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
With the exception of a scar on his right knee, the
enlistment examination indicated that his skin was normal.
His psychiatric condition was also normal. In June 1967, he
was evaluated for complaints of a skin rash. There were also
an erythematous, scaly rash on his back and raised, warm,
erythematous nodular eruptions on his right leg. The
assessment was rule out parasites. The veteran was seen for
similar complaints in August 1967. He stated that the
condition had worsened. The examiner opined that the veteran
appeared to have a typical ring worm lesion. A scraping with
KOH mount was negative. In January 1968, the veteran was
examined for complaints of a pimple and dysuria. On Report
of Medical Examination pending discharge, his skin and
psychiatric condition were normal. Service medical records
contain no findings of treatment or diagnosis of porphyria
cutanea tarda or a nervous condition.
The veteran’s Form DD-214 indicated that the veteran served
in the Republic of Vietnam during the Vietnam era.
In May 1995, the veteran filed a claim for service connection
for the residuals of exposure to Agent Orange. He stated
that he had been diagnosed as having skin cancer by
physicians at the Erie VA Medical Center (VAMC). He said
that he also had problems with pimple type boils on his back
and a growth on his ear. The veteran added that he suffered
from severe nervousness. He indicated that he was treated
for his skin problems at the Erie VAMC in 1985. He made no
other reference to post-service medical treatment of those
conditions.
Medical records from the Erie VAMC dated February 1985 to
March 1985 were associated with the claims folder. Those
records reflect that the veteran underwent an Agent Orange
examination in February 1985 due to complaints of skin
problems and nervousness. He stated he had a problem with
the skin on the back of his hands, and that the condition had
worsened over the past 10 years. He indicated that he also
developed “pimples” that would itch. The veteran added
that he had been nervous since he was in service, but that he
did not wish to discuss his experiences from that time. The
physical examination report contained no findings pertaining
to his mental status. However, with regard to his skin
problems, the veteran was referred to a dermatologist.
In a consultation report from the dermatology clinic dated in
March 1985, the veteran complained of eruptions on his hands
for the past 10 to 15 years and dermatitis on his back
especially in the summer. He added that the skin on the
dorsum of his hands “cut easily,” but that he was not
ultraviolet sensitive. There were a few comedones. He had
some early actinic changes of the skin of his face. He had a
lesion on his left ear which was occasionally sore. There
were hyperpigmented, mildly atopic areas on the dorsum of
both hands. He had some scales on his feet. His toenails
and fingernails were within normal limits. The impression
was rule out porphyria cutanea tarda, rule out tinea of the
hands and feet, and keratosis of the left, rule out
malignancy. Subsequent treatment records show that the
veteran underwent a 24 hour uroporphyrins test, laboratory
testing for tinea, a complete blood count, and a biopsy of
the keratosis of the left ear. A March 1985 pathology report
indicated that the lesion of the left ear was diagnosed as
being a seborrheic keratosis. None of the records from the
Erie VAMC showed that the veteran was diagnosed as having
porphyria cutanea tarda, or that any of his skin conditions
were etiologically related to exposure to herbicide agents.
By rating action of August 1995, service connection for a
skin condition and nervousness as secondary to exposure to
herbicide agents was denied. The RO stated that there was no
evidence that established that the veteran had been diagnosed
with a condition presumed to be caused by exposure to
herbicide agents. Moreover, the RO said there was no
evidence that the diagnosed keratosis had its onset in
service.
II. Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303(a) (1997). Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1997).
A disease associated with exposure to certain herbicide
agents, listed in 38 C.F.R. § 3.309 (1997) will be considered
to have been incurred in service under the circumstances
outlined in this section even though there is no evidence of
such disease during the period of service. No condition
other than one listed in 38 C.F.R. § 3.309(a) (1997) will be
considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116
(West 1991); 38 C.F.R. § 3.307(a) (1997).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
has a disease listed at § 3.309(e) shall be presumed to have
been exposed during such service to an herbicide agent,
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
service. The last date on which such a veteran shall be
presumed to have been exposed to an herbicide agent shall be
the last date on which he or she served in the Republic of
Vietnam during the Vietnam era. "Service in the Republic of
Vietnam" includes service in the waters offshore and service
in other locations if the conditions of service involved duty
or visitation in the Republic of Vietnam. 38 C.F.R.
§ 3.307(a)(6)(iii)(1997).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 C.F.R.
§ 3.307(a)(6)(iii)(1997) are met, even though there is no
record of such disease during service, provided further that
the rebuttable presumption provisions of 38 C.F.R. § 3.307(d)
(1997) are also satisfied: Chloracne or other acneform
disease consistent with chloracne; Hodgkin's disease;
multiple myeloma; non-Hodgkin's lymphoma; porphyria cutanea
tarda; respiratory cancers (cancer of the lung, bronchus,
larynx or trachea); and soft-tissue sarcoma (other than
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma). 38 C.F.R.
§ 3.309(e) (1997).
The diseases listed at 38 C.F.R. § 3.309(e) (1997) shall have
become manifest to a degree of 10 percent or more at any time
after service, except that chloracne or other acneform
disease consistent with chloracne and porphyria cutanea tarda
shall have become manifest to a degree of 10 percent or more
within a year, and respiratory cancers within 30 years, after
the last date on which the veteran was exposed to a herbicide
agent during active military, naval, or air service.
38 C.F.R. § 3.307(a)(6)(ii) (1997).
In addition to the above regulations, a final rule was issued
effective November 7, 1996 amending 38 C.F.R. § 3.307(a) and
3.309(e). See 61 Fed.Reg. 57586-57589 (November 7, 1996).
This amendment established presumptive service connection for
prostate cancer and acute and subacute peripheral neuropathy
based on exposure to herbicides. The amendment also added a
Note as follows: “For purposes of this section, the term
acute and subacute peripheral neuropathy means transient
peripheral neuropathy that appears within weeks or months of
exposure to an herbicide agent and resolves with two years of
the date of onset.” Although this revision was not
considered by the RO, in view of the fact that these are not
disabilities alleged by the veteran as having resulted from
exposure to herbicides in Vietnam, no useful purpose would be
served by Remanding this case to the RO for their
consideration of the revised regulation.
Notwithstanding the foregoing, The United States Court of
Appeals for the Federal Circuit, however, has determined that
the Veteran’s Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542,
§ 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a
veteran from establishing service connection with proof of
direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir.
1994). However, where the issue involves medical causation,
competent medical evidence which indicates that the claim is
plausible or possible is required to set forth a well-
grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
A. Skin Condition
The veteran’s active service included at least one (1) tour
of duty in the Republic of Vietnam. He is thus entitled to a
presumption of exposure to herbicide agents. In the instant
case, of the veteran’s complaint of various skin related
problems the only established diagnosis has been seborrheic
keratosis. Seborrheic keratosis is not a disease listed at
38 C.F.R. § 3.309(e). Accordingly, the veteran is not
entitled to any presumption that this disorder is
etiologically related to exposure to herbicide agents used in
Vietnam. The revised regulations cited above likewise do not
provide for presumptive service connection for seborrheic
keratosis based on herbicide exposure.
The Board notes that porphyria cutanea tarda (present within
one year of the last date on which the veteran was exposed)
is one of the only two skin conditions which are presumptive
disorders based on exposure to herbicide agents. In that
regard, the record contains no evidence which establishes
that the veteran was conclusively diagnosed as having
porphyria cutanea tarda at any time in service or post-
service. The diagnosis of “rule out porphyria cutanea
tarda” in the March 1985 dermatology consultation report is
not sufficient to establish a definitive diagnosis of
porphyria cutanea tarda. Notwithstanding the fact that there
are no findings of any type of skin condition prior to 1985
or since that time, the Board notes that the March 1985
biopsy of the veteran’s skin condition clearly diagnosed the
veteran as having a seborrheic keratosis. Hence, the veteran
is not entitled to any presumption that his current skin
condition is etiologically related to exposure to herbicide
agents used in Vietnam. Without the benefit of presumptive
service connection, he is obligated to submit a well-grounded
claim. See Tidwell v. West, No. 96-1778 (U.S. Vet. App. Feb.
13, 1998).
A person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.
The Secretary shall assist such a claimant in developing the
facts pertaining to the claim. 38 U.S.C.A. § 5107(a). The
issue before the Board is whether the appellant has presented
evidence of a well-grounded claim. If not, the appeal must
fail, because the Board has no jurisdiction to adjudicate the
claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993).
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of proof of 38 U.S.C.A. § 5107 (a). Murphy v.
Derwinski, 1 Vet. App. 78, 81. However, to be well grounded,
a claim need not be conclusive but must be accompanied by
evidence that suggests more than a purely speculative basis
for granting entitlement to the requested benefits. Dixon v.
Derwinski, 3 Vet. App. 261, 262-263 (1992). Evidentiary
assertions accompanying a claim for VA benefits must be
accepted as true for purposes of determining whether the
claim is well grounded, unless the evidentiary assertion is
inherently incredible or the fact asserted is beyond the
competence of the person making the assertion. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). When the question
involved does not lie within the range of common experience
or common knowledge, but requires special experience or
special knowledge, then the opinions of witnesses skilled in
that particular science to which the question relates are
required. Questions of medical diagnosis or causation
require such expertise. A claimant would not meet this
burden merely by presenting lay testimony, because lay
persons are not competent to offer medical opinions. Id. at
495.
A claim for service connection requires three elements to be
well grounded. There must be competent evidence of a current
disability (a medical diagnosis); incurrence or aggravation
of a disease or injury in service (lay or medical evidence);
and a nexus between the in-service injury or disease and the
current disability (medical evidence). The third element may
be established by the use of statutory presumptions. Caluza
v. Brown, 7 Vet. App. 498, 506 (1995).
The veteran has not submitted any medical evidence, other
than his contentions, which would tend to establish a medical
link between any exposure to herbicide agents during service
and his current skin condition. The veteran is not a medical
expert and, for that reason, he is not competent to express
an authoritative opinion regarding any medical causation or
diagnosis of his current condition. See Espiritu.
Furthermore, the Secretary of the VA formally announced in
the Federal Register, on August 8, 1996, that a presumption
of service connection based on exposure to herbicides used in
Vietnam was not warranted for "any other condition for which
the Secretary has not specifically determined a presumption
of service connection is warranted." 61 Fed.Reg. 41442-41449
(August 8, 1996). Accordingly, the veteran’s assertion that
there is a causative relationship between any exposure to
herbicide agents in service and his current skin condition is
without legal merit.
Thus, as seborrheic keratosis is not a disease entitled to a
presumption of service connection based upon exposure to
herbicides, and as the veteran has not submitted any
credible, probative medical evidence which demonstrates a
causal link between this condition and his exposure to
herbicides in service, the Board finds that the veteran's
claim is not well grounded.
B. Nervous Condition
In the instant case, the veteran has not presented medical
evidence confirming a current diagnosis of a nervous
condition. The veteran’s personal belief that he suffers
from a nervous condition does not meet the standard presented
by Caluza. There is no evidence that the veteran is a health
care professional and, thus, his opinion that he has a
nervous condition must fail. Again, as indicated in Espiritu
v. Derwinski, questions of medical diagnosis or causation
require the expertise of a medical professional.
As the United States Court of Veteran’s Appeals (Court) has
held in Brammer v. Derwinski, 3 Vet.App. 223 (1992) in the
absence of proof of a present disability, there can be no
valid claim for service connection. Accordingly, the
veteran’s claim for service connection for a nervous
condition as secondary to exposure to herbicide agents is
denied.
ORDER
Entitlement to service connection for a skin condition as
secondary to exposure to herbicide agents is denied.
Entitlement to service connection for a nervous condition as
secondary to exposure to herbicide agents is denied.
Iris S. Sherman
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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